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AMERICAN BALANCING AND GERMAN PROPORTIONALITY: THE HISTORICAL ORIGINS
IDDO PORAT AND MOSHE COHEN-ELIYA
ABSTRACT
American and European constitutional systems have two similar

doctrines: balancing and proportionality. Both resemble each other
in important aspects and are often discussed in tandem. However,
balancing has never attained the status of an established doctrine in
American constitutional law in the same way that proportionality has
in European constitutional law. Moreover, balancing has always
been the subject of fierce criticism and is very much a controversial
concept in American constitutional law. European proponents
of proportionality are perplexed by this American resistance which is
sometimes viewed as based on American isolationalism and
unilateralism. In this article we suggest an original, and often
overlooked, explanation to the difference between balancing and
proportionality – the historical origins of the two concepts.
We examine the ways in which proportionality developed in

Germany and balancing in the United States and show that the
origins of both concepts were very different. For instance,
proportionality was originally developed in administrative law, and
was only tangentially (if at all) related to private law, whereas
balancing arose in private law and was only later extended to public
law; proportionality was created as part of an attempt to protect
individual rights, whereas balancing was created for the exact
opposite purpose – to check overzealous protection of rights by the
Supreme Court during the Lochner era. We suggest that these
differences may go a long way in explaining current disparities in
attitudes and current barriers to dialogue and convergence between
these two concepts.
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AMERICAN BALANCING AND GERMAN PROPORTIONALITY: THE HISTORICAL ORIGINS
IDDO PORAT AND MOSHE COHEN-ELIYA
INTRODUCTION 1
A. ANALYTICAL DIFFERENCES BETWEEN BALANCING AND PROPORTIONALITY 6
B. THE ORIGINS OF PROPORTIONALITY IN GERMAN ADMINISTRATIVE LAW 13

B.1. Proportionality and Rechtsstaat 13
B.2. Judicial Review and the Development of the Principle of Proportionality 15
B.3. Proportionality, Natural Law and Formalism 16
B.4. Conclusion 18
C. THE ORIGIN OF BALANCING IN AMERICAN CONSTITUTIONAL JURISPRUDENCE 18

C.1. Balancing as a Critique of Formalism and Langdellianism 20
C.1.1. Langdellianism 20
C.1.2. Balancing as anti-Langdellianism 22
C.2. Background for Progressive Balancing in Constitutional Law: Balancing
and Anti-Formalism in Constitutional Law 24
C.2.1. Lochnerism 25
C.2.2. Balancing as anti-Lochnerism 26
C.2.3. Progressive Balancing During the McCarthy Era. 28
C.3. Conclusion 31
D. AFTERWORD: WILL BALANCING AND PROPORTIONALITY CONVERGE? 32
INTRODUCTION
Constitutional law is being globalized. It is becoming a shared enterprise that

transcends the borders of the nation-state. 1 Around the globe, justices of supreme
courts convene in conferences, enter into dialog with each other through their judicial
opinions, and draw on each other's work.2 In addition, constitutional law in many
countries has increasingly converged upon the same template. This template, termed
1
See Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative
Constitutional Interpretation, 74 IND. L.J. 819(1999); Bruce Ackerman, The Rise of World
Constitutionalism, 83 VA. L. REV. 771 (1997); Louis Henkin, A New Birth of Constitutionalism:
Genetic Influences and Genetic Defects, 14 CARDOZO L. REV. 533, 533 (1993); Neil Walker,
Postnational Constitutionalism and the Problem of Translation, in EUROPEAN
CONSTITUTIONALISM BEYOND THE STATE 27 (J.H.H. Weiler & M. Wind, eds., 2003).
2
See Ann-Marie Slaughter, Judicial Globalization, 40 VA. J. INT’L J. 1113, 1116-20 (2000);
Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT'L L.J. 191 (2003).
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by Lorraine Weinrib the "post-War paradigm",3 includes a robust form of judicial
review, and a two-stage system of protecting rights, consisting of a rights protection
clause and a standard-based doctrine for the adjudication of rights conflicts, namely
proportionality. The spread of proportionality across legal systems has been
particularly rapid, and has provided a common grammar for global constitutionalism -
- what David Law has referred to as generic constitutional law.4 David Beatty went as
far as arguing that proportionality was the “ultimate rule of law”,5 suggesting that
convergence on this principle would end age-old controversies over constitutional
interpretation, and signal the end of constitutional legal history.
While in many respects the United States is the birthplace of constitutionalism and the
driving force behind the global success of constitutionalism, its own constitutional
law stands apart from this common template. American Supreme Court Justices are
reluctant to engage in constitutional borrowing and to adopt constitutional templates,
such as proportionality, that originate in other legal systems.6 Instead, American
3
Lorraine Weinrib, The Postwar Paradigm and American Exceptionalism, in THE MIGRATION OF
CONSTITUTIONAL IDEALS 84 (Sujit Choudhry ed., 2006).
4
David Law, Generic Constitutional Law, 89 MINN. L. REV. 652 (2005). Alec Stone Sweet
documents the spread of proportionality in all countries of continental Europe, as well as in
Canada, Israel, South Africa, Eastern Europe, Latin America and also in supra-national courts
such as the European Court of Justice and the WTO Appellate Body. Alec Stone Sweet & Jud
Mathews, Proportionality, Balancing and Global Constitutionalism, COLUM. J. TRANSNAT'L L.
19 (forthcoming, 2008) (available at
http://works.bepress.com/cgi/viewcontent.cgi?article=1010&context=alec_stone_sweet, last
visited May 20, 2008).
5
DAVID BEATTY, THE ULTIMATE RULE OF LAW (2004). For a thoughtful critique of Beatty's
approach, See Vicki C. Jackson, Being Proportional about Proportionality, 21 CONST.
COMMENTARY 803 (2004).
6
See Printz v. United States, 521 U.S. 898, 921 n.11 (1997) (Justice Scalia expressed the view
that "comparative analysis [is] inappropriate to the task of interpreting a constitution,” and that
"our federalism is not Europe's."). But see Vicki C. Jackson, Forward: Constitutional
Comparisons: Convergence, Resistance, Engagement, 119 HARV. L. REV. 109 (2005) (Arguing
that Scalia’s approach does not represent the general approach of the Supreme Court). For two
excellent recent accounts of American exceptionalism, See AMERICAN EXCEPTIONALISM AND
HUMAN RIGHTS (Michael Ignatieff ed., 2005); EUROPEAN AND US CONSTITUTIONALISM 49
(Georg Nolte ed., 2005). For American resistance to apply proportionality analysis in American
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constitutional law, relying on the absolute nature of the American constitutional text,
portrays itself as adhering to a categorical constitutional analysis in which the
constitutional review starts and ends at the stage of identifying the infringement of a
right. American constitutional doctrines concentrate on devising complex categories
and subcategories for identifying the kinds of rights infringements that merit
constitutional review and the level of scrutiny that should apply to each one.
Frederick Schauer has recently argued in this regard that American constitutional law
is much more rule-based than non-American (mainly European) constitutional law,
pointing to the absence in American constitutional law of a standard-like
proportionality test. He has also provocatively argued that as European constitutional
law matures over time, it will develop the same rule-like structure that characterizes
the more mature American constitutional system.7
The difference between European and American constitutional law is therefore

portrayed as a difference between rules and standards.8 However, the United States
too has standards. After all, it is the birthplace of anti-formalism, which shuns rules
and prefers standards, and this phenomenon has not completely passed over
constitutional law. It is incorporated in the balancing doctrine that resembles
proportionality in many respects and is also a standard-based doctrine.9
constitutional law, see Jackson, supar note 5, at 857 (pointing to the "dark side" of
proportionality: “[i]t is an approach that may offer less constraint on political branches"); see
also Richard Fallon, Strict Judicial Scrutiny, 54 UCLA. L.REV. 1267, 1333 (2007).
7
Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A
Case Study in Comparative Constitutional Architecture, in EUROPEAN AND US
CONSTITUTIONALISM 49, 68 (Georg Nolte ed., 2005); Frederick Schauer, The Exceptional First
Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 29, 32 (Michael Ignatieff ed.,
2005).
8
See Frederick Schauer, The Convergence of Rules and Standards, N.Z. L. REV. 303 (2003). See
also Simon Evans & Adrienne Stone, Balancing and Proportionality: A Distinctive Ethics?
(Draft for discussion at the VII World Congress of the International Association of
Constitutional Law (Athens, June 2007) (a copy with the authors) (responding to Schauer’s
account).
9
Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987)
(documenting the spread of balancing in American constitutional law); See Fallon, supra note 6

The two tests, balancing and proportionality, resemble each other in important aspects
and are often discussed in tandem. However, balancing has never attained the status
of an established doctrine in American constitutional law in the same way that
proportionality has in European constitutional law. Moreover, balancing has always
been the subject of fierce criticism and is very much a controversial concept in
American constitutional law. From the 1950s onward, balancing has been at the center
of a heated debated in the Supreme Court.10 As Richard Fallon recently put it:
"balancing applications frequently draw outraged protests from dissenting Justices
who contend that the Court has betrayed the staunch commitment to preserve
individual rights."11
Since the two tests, balancing and proportionality, seem to be analytically similar and
to perform similar functions, it is fair to ask why the treatment of proportionality is so
different in Europe and in the United States. How is that proportionality raises very
little opposition in Europe, while balancing raises so much opposition and resistance
in the United States? European proponents of proportionality are perplexed by this
American resistance. After all, they argue, some form of a two-stage proportionality
analysis is both unavoidable and commonsensical. Why not make use of the fact that
balancing is a familiar concept in American jurisprudence and increase its centrality
to constitutional discourse, instead of marginalizing it and stressing the differences
at 1306-1308, 1328 (portraying one version of the strict scrutiny as a weighted balancing text).
For a recent example of the use of balancing in Supreme Court adjudication see Ian Ayres &
Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX.
L.REV. 517 (2007) (discussing the use of balancing in affirmative actions cases.)
10
See infra section C.2.3. For the same debate in scholarly literature see Laurent B. Frantz, The
First Amendment in the Balance, 71 YALE L.J. 1424 (1962) (arguing against balancing in First
Amendment cases); Wallace Mendelson, The First Amendment and the Judicial Process: A
Reply to Mr. Frantz, 17 VAND. L. REV. 479 (1964) (endorsing balancing in First Amendment
cases)
11
Fallon, supra note 6, at 1307.

between American and European constitutional law.12 Such an approach is sometimes
viewed as based on American isolationalism and unilateralism.13
One can, of course, deny that balancing and proportionality are similar, and argue that
despite superficial similarities they are analytically distinct. However, as we will
show in Part I, we believe that the analytical different between the two concepts are
not substantial enough to account for the differences in attitudes towards them.
In this article we wish suggest another explanation for the difference between
balancing and proportionality, one which has been largely overlooked to date – an
explanation based on the different history of balancing and proportionality. As
proportionality originated in Germany and balancing in the United States, an
examination of the different ways in which proportionality and balancing developed
in these countries is of value. These differences, we believe, go a long way toward
explaining the different attitudes towards the two concepts.
Examining the history of the concepts of balancing and proportionality, we find that
there are distinct differences between the two. Indeed, the differences are so evident
that they outweigh the similarities. For instance, proportionality was originally
developed in administrative law, and was only tangentially (if at all) related to private
law, while balancing arose in private law and was only later extended to public law;
proportionality was created as part of an attempt to protect individual rights against a
background of little textual support for such protection, whereas balancing was
created for the exact opposite purpose – to check overzealous (libertarian) protection
of rights by the Supreme Court based on an overly literal reading of the constitutional
text; and, finally, proportionality was developed in the course of the formalistic and
12
Dieter Grimm, Proportionality in Canadian and German Constitutional Law Jurisprudence, 57
UNIV. OF TORONTO L.J. 383 (2007); Aharon Barak, Proportional Effect: The Israeli Experience,
57 UNIV. OF TORONTO L.J. 369 (2007).
13
Weinrib supra note 3 at 85. For an account of American Unilateralism see Jed Rubenfeld,
Commentary: Unilateralism and Constitutionalism, 79 N.Y.U. L.REV. 1971 (2004)
(documenting American Unilateralism).

doctrinal jurisprudence of the German administrative courts, and was not part of an
anti-formalistic legal philosophy, whereas balancing was part of the anti-formalist
revolution of the Progressives, and a leading aspect of this revolution.
The historical account, we believe, may therefore suggest that we have an

interesting phenomenon to study: two legal principles that started out very different
came to a point where today it seems natural to discuss the two together.
We start in Part I by presenting and refuting three main arguments regarding the
analytical differences between proportionality and balancing. We then turn to describe
the origins of proportionality in Germany (Part II) and in the United States (Part III),
noting their pro- or anti-rights associations as well as to their jurisprudential
characteristics in terms of formalism and anti-formalism. We conclude in Part IV by
discussing the implications of the historical account for the difference in attitude to
balancing and proportionality, and raise the question whether the two concepts will
converge.
A. ANALYTICAL DIFFERENCES BETWEEN BALANCING AND PROPORTIONALITY
In this Part we will briefly discuss the analytical structure of proportionality and
balancing in order to determine whether they are analytically different from each
other.
Wherever the proportionality test has been introduced, it has the same basic two-stage
structure. The first stage is to establish that a right has been infringed by
governmental action. In the second stage the government needs to show that it
pursued a legitimate end and that the infringement was proportional. The
proportionality requirement is in fact comprised of three sub-tests: first, the means
adopted to further the governmental end must be appropriate for furthering that goal
(suitability); second, the means adopted must be those that least infringe on the right
of the individual (necessity); and third, the loss to the individual resulting from the

infringement of the right must be proportional to the governmental gain in terms of
furthering the governmental goal (proportionality in the strict sense).14
For example, in the Israeli case of Horev v. Minister of Transportation,15 which

concerned a road detour imposed by the Jerusalem municipality to prevent cars
passing through an ultra-orthodox Jewish neighborhood during the Sabbath, the
Israeli Supreme Court analyzed the case in the following way. It first identified an
infringement of the right to free movement and identified the legitimate governmental
end of protecting religious feelings. It then applied the three steps of the
proportionality test: (a) it asked whether the governmental means (the detour)
furthered the governmental end (protecting religious feelings) (the suitability test); (b)
it asked whether the means chosen were the least restrictive possible (the necessity
test); and (c) it asked whether the harm to the right to free movement was proportional
to the benefit of protecting religious feelings (proportionality in the strict sense).
Applying these three sub-tests, the Court arrived at the conclusion that the detour
would be mandated only during prayer times on the Sabbath.
Like proportionality, balancing is triggered when a constitutional right or another

constitutional provision has been infringed (or burdened), and, like proportionality, it
concerns the comparison between the burden on the right and the importance of the
14
The literature on proportionality is immense. We note here a few recent theoretical and
analytical engagements on proportionality: Beatty, supra note 5; Jackson, supra note5; ROBERT
ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (2002); Julian Rivers, Proportionality and
Variable Intensity of Review, 65 CAMBRIDGE L.J. 174 (2006); Mattias Kumm, What Do You
Have in Virtue of a Constitutional Right? On the Place and Limits of the Proportionality
Requirement, forthcoming in LAW, RIGHTS, DISCOURSE: THEMES OF THE WORK OF ROBERT
ALEXY (S. Paulssen, G. Pavlokos eds., 2007); Alec Stone Sweet & Jud Mathews,
Proportionality, Balancing and Global Constitutionalism, COLUMBIA JOURNAL OF
TRANSNATIONAL LAW 19(forthcoming, 2008) (available at
http://works.bepress.com/cgi/viewcontent.cgi?article=1010&context=alec_stone_sweet, last
visited May 20, 2008); Grimm, supra note 12; Barak, supra note 12; J. Lowell & A. Lester,
Proportionality: Neither Novel Nor Dangerous, in NEW DIRECTIONS IN JUDICIAL REVIEW 51
(J.L. Jowell and D. Oliver, eds., 1988).
15
HCJ 5016/96 Horev v. Minister of Transportation (an English translation of the court decision is
available at http://elyon1.court.gov.il/files_eng/96/160/050/A01/96050160.a01.htm (last visited
May 20, 2008).

governmental interest.16 Thus, in the first case to apply balancing in free speech
jurisprudence, Schneider v. New Jersey,17 in which a municipal ban on the distribution
of handbills was attacked as unconstitutional, the Supreme Court balanced the right of
free speech against the municipal interest in clean streets and held that in the
circumstances of the case the ban violated the right to free speech.
There are at least three separate arguments for why these two doctrines -- balancing
and proportionality -- are analytically distinct. We review these arguments below, and
show the difficulties in each, arriving at the conclusion that analytical differences do
not help explain the different attitudes towards the two concepts in the United States
and other countries.
First, German and Canadian scholars often argue that the proportionality test is more
structured and doctrinal than balancing, since it is divided into three analytically
separate tests, that logically follow from and complement each other, while the
balancing test is vague, general and lacking in structure. 18 As a result, it can be
argued that the proportionality test has greater value than balancing in several
respects: it is better at assisting judges structure their decisions and arrive at the right
conclusions; it allows greater transparency in the judicial process and provides a
greater degree of legitimacy to judicial decisions; and it has a better regulating and
educating effect on the public and on government. By contrast, as balancing lacks
16
For definitions of balancing in American constitutional law see Aleinikoff supra note 9. See also
Iddo Porat, The Dual Model of Balancing, 27 CARDOZO L. REV. 1393 (2006); Iddo Porat, On
the Jehovah Witnesses Cases, Balancing Tests, Indirect Infringement of Rights and
Multiculturalism: A Proposed Model for Three Kinds of Multicultural Claims , 1 LAW AND
ETHICS OF HUMAN RIGHTS 429 (2007).
17
Schneider v. New Jersey, 308 US 147 (1939)
18
Grimm, supra note 12, at 395 (criticizing the Canadian Supreme Court for not following the
analytical steps of the proportionality test and for conducting undisciplined balancing in the
necessity test); Weinrib, supra note 3, at 96 (emphasizing the structural and analytical nature of
proportionality analysis); Beatty, supra note 5, at 172 (emphasizing the neutral characteristics of
proportionality). Robert Alexy goes as far as arguing that the three sub-tests of the
proportionality analysis follow logically from the concept of rights as principles. See Alexy,
supra note 14, at XXIX.

structure, it provides more room for judicial subjectivity and might enable judges to
uphold governmental infringement of rights more easily.
These scholars may be overemphasizing the rule-like nature of proportionality. More

importantly, however, by comparing balancing, on the one hand, and all the three sub-
tests of proportionality, on the other, they engage in an unfair comparison between
balancing and proportionality. Only the final sub-test of proportionality,
proportionality in the strict sense, is analogous to balancing. The first two tests are
means-ends tests that do not involve balancing -- at least not as it is usually
understood in American jurisprudence.19 The first two sub-tests, suitability and
necessity, do not require a comparison between the end and the right. All that is
required is a better fit between the means and the end, one which does less harm to the
right. In this sense, the first two sub-tests of proportionality function as Pareto optimal
tests.20
Moreover, American constitutional law includes tests that are very similar to the first
and second sub-tests of proportionality, although not at the balancing stage of the
constitutional analysis. For example, the least restrictive means test, which is an
important test in American constitutional law, operates very similarly to the second
sub-test (necessity) of proportionality.21 In addition, the first sub-test (suitability) of
19
See also Donald H. Regan, Judicial Review of Member-State Regulation of Trade Within a
Federal or Quasi-federal system: Protectionism and Balancing, Da Capo, 99 MICH. L. REV.
1853, 1853 note 1 (2001) “[N]either pure "rationality review" nor pure "less restrictive
alternative analysis" is a form of balancing as I use the term. Both these modes of review focus
on whether there are any benefits, either from the regulation in itself, or from the regulation as
opposed to some alternative. Neither requires the comparison of benefits and burdens.”
One may claim that judges do engage in balancing even in the first and second sub-tests. See
Grimm, supra note 12, at 395; Guy Davidov, Separating Minimal Impairment from Balancing:
A Comment on R. v. Sharpe (B.C.C.A.), 5 REV. CONST. STUD. 195 (2000). However, To the
effect that balancing enters these tests, it is an example of "smuggling in" the third sub-test into
the first and second sub-tests.
20
Beatty, supra note 5, at 110; Rivers, supra note 14, at 198.
21
For a classic account of this doctrine is US law, see Note, Less Drastic Means and the First
Amendment, 78 YALE L.J. 464, 468 (1969); Guy M. Struve, The Less Restrictive Alternative
Principle and Economic Due Process, 80 HARV. L. REV. 1464 (1967).

proportionality is inherent in each of the three tiers of scrutiny, even in the most
deferential rational basis test.
Second, some advocates of proportionality argue that proportionality is more

objective and reliable, since its analytical structure makes it immune to one of the
main problems that plague balancing – the problem of incommensurability. The
argument is that proportionality, even in its third sub-test (proportionality in the strict
sense), does not require the comparison between two incommensurable values.
There is a nice example that may explain this claim.22 Consider a dog show, in which
there are different contests: the best Bulldog in the show, the best Schnauzer , and so
on. However, there is also a final contest for the best dog overall in the show.
Comparing one Schnauzer to another can make sense, but how are we to compare
Bulldogs and Schnauzers? Proportionality, so the argument goes, provides a solution:
we take the Bulldog that won the Bulldog show, and the Schnauzer that won the
Schnauzer show, and ask with respect to each one how close it came to the ideal
Bulldog or Schnauzer, in each case in terms of the standards of its own species.
Similarly, the proportionality test assesses each value in its own terms, without the
need to compare incommensurable values, and then asks with respect to each one how
close the infringement in the case was to the core of this value.
Beatty seems to use a similar argument to explain why the Israeli Horev decision does
not include balancing which requires the Court to compare incommensurable values.
According to Beatty, the Court did not have to balance the importance of free
movement and of protecting religious feelings. Instead, what it did was to examine the
extent of the harm done to each value in its own terms, and look for a solution that
would dramatically decrease the extent of harm to one value (religious feelings) while
minimally harming the other value (free movement). Requiring the detour for a few
minutes only during prayer times is such a solution. Beatty’s account also emphasizes
the advantages of proportionality as being focused on the facts of the case rather than
22
We are indebted to Prof. Bruce Chapman for the idea of this example.
10

on value judgments, and hence again as promoting judicial legitimacy and decreasing
the extent of judicial subjectivity.23
Our objection to the argument is twofold. First, to the extent that this argument is true,
it is equally true of balancing. In other words, if it is possible to apply the third test of
proportionality in a way that does not require the comparison of incommensurable
values, it is also possible to apply balancing in the same fashion. To the extent that
this has not been achieved with regards to balancing, it is not because of the analytical
limitations of balancing but because of the inclinations of American judges.
More importantly, the argument substantially disregards the ways in which normative
assessments are indispensable and unavoidable in any kind of proportionality or
balancing test. One must take into account the relative importance of the conflicting
rights and interests. Thus, for example, in Schneider a substantial harm to the valid
interest in clean streets did not override the less substantial harm to free speech, in
view of the greater relative importance of the latter in a democratic society.
Finally, advocates of proportionality often view balancing as being less protective of

rights, compared to proportionality. Proportionality, the argument goes, is based on a
view that upholding the right is the norm, while infringing it is the exception that
requires strict justification for it to be upheld.24
This argument, however, is not based on an analytical distinction between balancing

and proportionality, but is rather based on an assumption about constitutional cultural
differences which tip the balance in favor of protecting the right in legal systems
where proportionality is applied. There is nothing inherent in the concept of balancing
23
Beatty, supra note 5, at 169. Beatty relies on David Luban, Incommensurable Values, Rational
Choice and Moral Absolutes, 38 CLEV. ST. L. REV. 65, 75 (1990) stating that what the Court in
Horev reached a common-sense conclusion based on a small-large trade-off.
24
Lorraine Weinrib, The Supreme Court of Canada and Section 1 of the Charter, 10 SUP. CT.
REV. 469 (1988); Lorraine Weinrib, Constitutional Conceptions and Constitutional
Comparativism, in DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW (Vicki
Jackson & Mark Tushnet eds., 2002) (describing proportionality as a method for protecting
rights); DAVID BEATTY, CONSTITUTIONAL LAW IN THEORY AND PRACTICE (1995) (same).
11

that would prevent a similar result in the United States. For example, the strict
scrutiny test, even in its mildest form, which is termed by Fallon a "weighted
balancing test," is "distinguished from other balancing tests by its premise that the
stakes on the rights side of the scale are unusually high and that the government's
interest must therefore be weighty to overcome them."25 In addition, even in a
proportionality-based system such as the Canadian one, the approach that gave
priority to rights as established in the seminal Oakes26 test has been eroded over
time.27 It is therefore inaccurate to portray proportionality, as opposed to balancing, as
a device that is analytically (rather than culturally) pro-rights.
This brief review suggests that analytical differences may not be substantial and
cannot therefore account to a satisfactory degree for the difference in attitudes
towards these two concepts. We therefore move to the historical account of the origins
of proportionality in Germany and balancing in the United States.
25
Fallon, supra note 6, at 1306.
26
R. v. Oakes,1 S.C.R. 103 (1986).
27
The strict Oakes test was eroded quite rapidly in R. v. Edward Books and Art [1986] 2 S.C.R.
713, 772 when the Court deferred to the government in the application of the necessity sub-test
of proportionality. For an excellent reading of the erosion of the Oakes test, see Sujit Choudhry,
So What is The Real Legacy of Oakes? Two Decades of Proportionality Analysis under the
Canadian Charter’s Section 1 , 35 SUP. CT. L. REV (2d) 501 (2006). See also Christopher M.
Dassios & Clifton P. Prophet, Charter Section 1: The Decline of the Grand Unified Theory and
the Trend towards Deference in the Supreme Court of Canada, 15 ADVOCATES’ QUARTERLY
289, 291 (1993); Robin Elliot, The Supreme Court of Canada and Section 1 -- The Erosion of
the Common Front, 12 QUEEN’S L.J. 277, 281 (1987); Gerard La Forest, The Balancing of
Interests under the Charter, 2 N.J.C.L. 133 (1993); Ruth Colker, Section 1, Contextuality, and
the Anti-Advantage Principle, 42 UNIVERSITY OF TORONTO L.J. 77 (1992).
12

B. THE ORIGINS OF PROPORTIONALITY IN GERMAN ADMINISTRATIVE LAW
The principle of proportionality first arose in Germany. It was an important

instrument for the introduction of individual rights into an authoritarian legal system,
which historically had provided only a limited textual basis for such rights. By
insisting that the government choose only such means that are least harmful to
individual rights, the use of proportionality set a formal limitation on the exercise of
police powers, thus introducing the notion of rights into German positive public law.
This Part deals with the historical origins of proportionality in Prussia, the politically
and intellectually dominant German Land in the eighteenth and nineteenth centuries.
As discussed below, between 1882-1914 the legal doctrine of proportionality was
extensively employed by Prussian administrative court judges. We therefore start with
a short introduction to the foundations of Prussian administrative law.
B.1. Proportionality and Rechtsstaat
Starting in the second half of the eighteenth century, Prussia gradually evolved from
an authoritarian state, in which the Kaiser was the supreme and sole source of
authority, into a state that was governed by law – a Rechtsstaat. At that time, Prussia
was a military and economic power, ruled by Friedrich the Great. Well-versed in the
principles of enlightened absolutism and influenced by the first buds of liberal social
contractarianism and rationalism (upon which the French and the American
Revolutions were founded), Friedrich the Great believed that a monarch's authority
was not unlimited, but rather that he was "the first servant of his state".28 He therefore
acted to establish Prussia's legal system on the basis of principles of rationalism,
religious tolerance and individual freedoms.
Under his successor, Friedrich Wilhelm III, the codification of Prussian law was
completed. Article 10(2) of the Allgemeines Landrecht of 1794 authorized the
government to exercise police powers in order to ensure public peace, but at the same
28
CARLYLE THOMAS, THE HISTORY OF FRIEDRICH THE SECOND: CALLED FRIDRICH THE GREAT
(1863).
13

time it also limited those powers to such measures that were essential for achieving
that goal. The article stated that "[t]he police is to take the necessary measures for the
maintenance of public peace, security and order."29 This is the first textual basis for a
requirement of proportionality. It is clear, both from the language of this provision
and from its underlying logic, that this was a reversal of the default rule by which
state action was legitimized under German public law. If in the past state action had
been held to be valid, even when it was not explicitly permitted under the law,
henceforth the validity of such action depended on explicit textual authorization. This
is the essence of the Rechtsstaat principle in German public law to this day. And
although the precise meaning and implications of "Rechtsstaat" are still debated, this
principle played in Germany a role similar to that of the British "rule of law",
imposing limits on governmental actions, thus providing citizens with a much greater
degree of freedom than would otherwise have been available. 30
Functionally, the requirement of proportionality, i.e., that the use of police powers be
proportional to the goals defined by law, corresponded to the Rechtsstaat requirement
and complemented it. Both principles provide ways to cope with a system in which
there are few formal limits to police powers. The concept of the Rechtsstaat permitted
the government to infringe individual rights, but only when such infringement was
clearly authorized by law. The principle of proportionality further limited this power,
permitting government exercise only of those measures that were necessary for
achieving its legitimate goals In other words, the requirement of a clear legal basis
29
See Stone Sweet & Mathews, supra note 4 at 19.
30
The principle of the Rechtsstaat is not identical to the principle of the rule of law, despite
the liberalizing effect of both. The Anglo-American conception of natural rights assumes
that men and women have rights that precede the existence of the state, whereas the
German Rechtsstaat is more state-centered. Thus, LEONARD KRIEGER in his classic THE
GERMAN IDEA OF FREEDOM 460 (1957) argued that the Rechtsstaat is not "defined in
terms of a state which permitted to the individual rights apart from the state. It became
now simply the kind of state whose power was articulated in legal modes of action – that
is, in measures which conformed to general rules." Krieger sketches a conservative and
even authoritarian concept of the Rechtsstaat. See also HANS ROSENBERG, POLITISCHE
DENKSTROMUNGEN IN DEUTSCHEN VORMÄRZ (1972) (the state was conceived in
Germany not only as an institutional safeguard for the protection of individual rights but
also as a "fatherland").
14

for the use of police powers and the requirement that such use be proportionate were
meant to maximize individual autonomy under a legal system that did not have a
constitutional bill of rights.
B.2. Judicial Review and the Development of the Principle of Proportionality
The ideas of Rechtsstaat and proportionality required the establishment of an

institutional mechanism to implement them. This was the basis for the formation of
the highly influential administrative courts in Prussia in the second half of the
nineteenth century.
Because the Prussian Parliament was a reactionary body and subservient to

government demands, it did not demand ministerial accountability, which is an
essential prerequisite for preventing abuse of police powers. Thus, in the middle of
the nineteenth century, after German liberals lost hope of institutionalizing an
effective parliamentary system of government, they shifted their demands from
ministerial to judicial accountability. In other words, instead of having ministers and
their subordinates accountable to parliament, they now demanded that public officials
be accountable to the courts.31 The reformists regarded judges as the best guardians of
individual rights against administrative abuse.32
In the end, a separate system of administrative courts was established.33 These courts
had the authority to review the use of police powers.34 Between 1882 and 1914 the
Prussian Supreme Administrative Court (PSAC) made intensive use of proportionality
31
Kenneth F. Ledford, Formalizing the Rule of Law in Prussia: The Supreme
Administrative Law Court (1876-1914), 37 CENTRAL EUROPEAN HISTORY, 203, 222
(2004).
32
Id, at 210.
33
The compromise between the bureaucrats, who supported internal administrative review,
and the liberals, who preferred external judicial review of the administration, was to
establish a separate system of administrative courts, composed of equal numbers of
jurists and bureaucrats. Id, at 212.
34
Section 127 of the State Administrative Act of 1883 granted the Prussian Supreme
Administrative Court explicit authority to review any governmental order after
exhausting all administrative appeals.
15

as a method for examining the legitimacy of government intervention in economic
and social life. Without explicitly announcing a new legal principle,35 the PSAC held,
in a series of important decisions, that an exercise of police powers that infringed on
political and economic rights must be proportional and narrowly construed. In its
seminal 1882 Kreuzberg decision, the PSAC struck down a Berlin ordinance that
banned the construction of buildings that blocked city views of a national monument,
on the grounds that the government could only act to prevent danger to public safety
and could not impose its own aesthetic judgment.36
In a separate case, it ruled that restrictions on the rights of Social Democrats to

assemble and demonstrate must be based on concrete facts. Such facts must
demonstrate a real danger to public order, and the restrictions could not be based on
police assumptions that the combination of alcohol consumption and political
opposition to the government would inevitably result in a disturbance to public
order.37 A particularly strict test was established in a series of rulings relating to the
controversial play The Weaver, which was suspected of being sympathetic to, and
fomenting, popular revolt against capitalist exploiters. The court ruled that the police
could not ban performances of the play based on a remote possibility that it would
lead to a disturbance of public order. Rather, the police needed to prove "an actual,
near and impending danger" in order to justify such censorship.38
B.3. Proportionality, Natural Law and Formalism
In the absence of explicit protection of constitutional rights, many liberals resorted to

the rhetoric of natural rights in order to justify the introduction of rights in German
public law. The rhetoric of natural rights was indeed pervasive in the writings of
liberal Prussian legal scholars of the time. Two of the leading scholars who developed
the principle of proportionality, Mayer and von Berg, directly linked proportionality
and natural rights. von Berg, for example, wrote that "[t]he police law may abridge
35
LOTHAR HIRSCHBERG, DER GRUNDSATZ DER VERHÄLTNISMÄßIGKEIT 3 (1981).
36
Decisions of the Prussians Administrative Law Court, 9 (1882) 353.
37
VERNON L. LIDTKE, THE OUTLAWED PARTY: SOCIAL DEMOCRATS IN GERMANY 1878-
1890, 241-262 (1966).
38
Ledford, supra note 31, at 220
16

the natural freedom of the subject, but only insofar as a lawful goal requires as
much".39 And according to Mayer, "natural rights demand that the use of police
powers by the government be proportionate".40 One must be aware of the fact that at
that time natural rights were perceived in Germany as libertarian rights that imposed
constraints on the use of governmental powers and expanded the protection of
political and economic freedoms. Therefore, the liberal bourgeoisie had a fundamental
economic and political interest in promoting such legal developments.41
One should note, however, that in spite of the connection between proportionality and
natural law concepts, and in spite of the association of proportionality with judicial
activism, the methodology employed by the Prussian administrative judges remained
essentially formalistic and never shifted to realism and pragmatism. The judges of the
PSAC regarded themselves as acting within the framework of the formalist tradition
of German law, which considered itself an autonomous, complete and logical system
of concepts and rules that contained within it solutions for all the cases that came
before it.42
In general, Prussian administrative judges refrained from presenting themselves as

conducting a common-sense cost-benefit analysis. Although the Prussian court did not
split the requirement of proportionality into a tripartite test (as is the custom today in
German public law), it seems that a major element guiding its rulings was its
insistence on a more formal means-ends analysis (rational connection and the less
drastic means), rather than the more substantive (balancing) inspection typically
39
Cited in Stone Sweet and Mathews, supra note 4 at 17.
40
OTTO MAYER, DEUTSCHES VERWALTUNGSRECHT, 1. BD., S. 267 (1895).
41
David Blackbourn, The Discreet Charm of the Bourgeoisie: Reappraising German
History in the Nineteenth Century in THE PECULIARITIES OF GERMAN HISTORY 157
(David Blackbourn & Geoff Eley eds., 1984) (noting that the Rechtsstaat principle was
necessary for the creation of a solid middle-class society, and fostered capitalist
modernization in nineteenth-century Germany).
42
For an excellent overview of the radical formalist characteristics of German legal thought
in the nineteenth century, See Mathias. Reiman, Nineteenth-Century German Legal
Science, 31 B.C. L. REV. 837 (1990).
17

conducted within the framework of proportionality in the strict sense, as we think of it
today.43
Early twentieth-century German liberals, such as Weber and Kelsen, regarded the
formalistic analysis of the kind mentioned above, as, on the one hand, a crucial means
for ensuring a more effective governmental system, and, on the other hand, an
important tool for maximizing individual freedom, since it set clear limits on state
actions and thus afforded the individual wider space for activity.44 The tendency of
Prussian administrative courts to focus on a formal analysis of proportionality was in
line with mainstream formal German legal science of the day (Rechtwissenschaft).45
The German law scientists of the time, headed by Savigny, often borrowed from the
natural sciences in order to exemplify the logic of the law and the systematic way in
which legal rules are created and function. For example, in the same way that one can
derive the length of one side of a triangle from the lengths of its two other sides, one
can also derive (so they claimed) any missing rules from the existing rules of law.46 In
the same vein, some compared the science of law to chemistry: if in chemistry one
can create matter out of certain basic elements, so in law one can create new rules out
43
We would like to emphasize that we are not claiming that the PSAC made no reference to
what we now refer to as proportionality in the strict sense. It is clear, however, that the
rhetoric of balancing was not pervasive in its decisions and that the legal analysis focused
more on the empirical and logical connections between means and ends. See JURGEN
SCHWARZE, EUROPEAN ADMINISTRATIVE LAW, Ch. V, C5 (2006).
44
Weber viewed formal rationality as almost the “twin brother of liberty,” since it prevents
the government from taking arbitrary action. See M. Weber, Diskussionerede zu dem
Vortag von H. Kantorowicz Rechtwissenschaft und Soziologie, in GESAMMELTE
AUFSÄTZE ZUR SOZIOLOGIE UND SOZIALPOLITIK 477-481 (1924). The translation into
English of parts of this article can be found in WEIMAR, A JURISPRUDENCE OF CRISIS 50,
53 (A. Jabloner & B. Schlink eds., 2000). For similar reasons, Hans Kelsen opposed the
inclusion of a bill of rights in the German constitution. Because rights are drafted in an
open-ended manner, the inclusion of rights in a constitution would grant judges too much
power to interpret the meaning of such rights. See Stone Sweet, supra note 4, at 16.
45
Mathias W. Reimann, Free Law School, in ENCYCLOPEDIA OF LAW AND SOCIETY 605
(David S. Clarck, ed., 2007) (showing that the Freirecht movement was not part of
mainstream German jurisprudence)
46
Reimann, id., at 876-883.
18

of the basic rules of law. Even the Darwinist theory of evolution had an influence on
the way German legal science presented itself, comparing the development of law to
that of an organism.
This above mentioned formal reading of proportionality in the judgment of the PSAC
should be contrasted with another term, the "balancing of interests", which was
developed in parallel (though in an unrelated manner) in German law. During this
period, there rose a radical anti-formalistic movement in German law science – the
Freirechtschule – which criticized formalism and conceptualism mainly in private
law.47 The proponents of Freirecht, notably von Jhering, viewed law as a domain
whose purpose is to settle conflicts between competing interests by way of balancing.
The Freirechtschule viewed judging as a creative activity that is heavily determined
by the judges' personalities.48
It seems that there has been no direct link between balancing and proportionality in
German law and that in a certain sense they were even associated with opposing legal
movements. First, balancing of interests has its origins in German private law, while
proportionality originated in German public law. Second, in contrast to the influence
of the twentieth-century American legal realists, the Freirechtschule signaled a
radical departure from the dominant formalistic tradition of German law of the time,
and thus it had no real influence on German jurisprudence. The administrative courts
clearly did not associate themselves with this radical movement. Instead, they placed
themselves within the framework of mainstream German formal thought. Lastly, the
ideas of the Freirechtschule were considered by liberal formalists such as Weber as a
real threat to the principles of liberalism and democracy. Therefore, the Freirecht
ideas were opposed ideologically to the formalistic principles on which the principles
of Rechtsstaat and proportionality were based. Accordingly, they did not find their
way into the jurisprudence of the PSAC.
47
For a thoughtful comparison between the Freirechtschule and American realism, See
James Harget & Steohen Wallace, The German Free Law Movement as the Source for
American Legal Realism, 73 VA. L. REV.399 (1987).
48
Reimann, supra note 45, at 605.
19

B.4. Conclusion
For purposes of the present argument, there are several conclusions that may be draw
from the development of the principle of proportionality in German public law in the
nineteenth century. First, proportionality was an instrument by which the idea of
rights was introduced into German law. Consequently, the principle of proportionality
stands in Germany for the protection of rights. Second, the effect of proportionality
was to enhance the protection of political and economic rights, which were considered
at that time to be "natural" rights. Obviously, the liberal bourgeoisie had a
fundamental interest in ascertaining that such a legal development take place. Third,
the legal doctrine of proportionality was not related to realistic or pragmatic theories
of law, such as those championed by the Freirechtschule and American legal realist
school. Its origins are in the formalistic approaches which are deeply imbedded in the
German legal tradition. Proportionality was a prerequisite for improving the
administration and making it more effective, and this improvement could be achieved
by focusing on the means-ends nexus rather than by ad hoc balancing of opposing
interests. Finally, the proportionality doctrine originated in administrative law, not in
private law.
C. THE ORIGIN OF BALANCING IN AMERICAN CONSTITUTIONAL JURISPRUDENCE
While in Germany the idea of proportionality was the way in which the protection of
rights was introduced in a system that provided limited formal protection of rights, in
the United States balancing was applied to address the opposite problem. In the
United States there was strong textual support for the protection of rights but little
textual basis for limiting rights. Balancing was therefore an important interpretative
tool for the prevention of absolutism in the protection of rights, by requiring that
rights be balanced with other important interests. In addition, unlike proportionality in
Germany, balancing sprang from the anti-formalist movement, and originated in
private law, not in public law. Finally, the natural rights theory that was associated
with proportionality was not associated with balancing. On the contrary, natural rights
theories were criticized by the Progressives who applied balancing in American
constitutional law.
20

C.1. Balancing as a Critique of Formalism and Langdellianism
C.1.1. Langdellianism
The idea of balancing entered American legal thought through the writings of Oliver
Wendell Holmes, in his critique of formalism and Langdellianism in American private
law.
Christopher Columbus Langdell, who was Dean of Harvard Law School in the latter
part of the nineteenth century, was one of the major proponents of formalism in
American jurisprudence. Influenced by the German legal science movement, and
aspiring to promote the stature of law as an academic discipline, he set out to establish
law as a serious and rigorous scientific enterprise, like physics or geometry.49 The
Langdellian conception of law, therefore, portrayed the legal sphere as having the
following three scientific characteristics: law was determinate—legal conclusions
could be arrived at with certainty and only minimally subject to individual discretion;
it was systematized—law was based on a coherent and limited set of abstract
principles; and it was autonomous—law was separate from other spheres such as
society, politics and morals.50 Langdellianism also emphasized categorical
distinctions between different areas of law and different legal concepts, rather than
distinctions of degree; absolute rather than relative rights and concepts; and the
conceptual meaning of rights, rather than their social function.51
49
See Duncan Kennedy, Towards a Historical Understanding of Legal Consciousness: The case of
Classical Legal Thought in America, 1850-1940, 3 RES. L. & SOC’Y 3 (1980); Thomas Grey,
Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 50 fn. 180 (1983); See e.g. NEIL DUXBURY,
PATTERNS OF AMERICAN JURISPRUDENCE 10 (1995).
50
See Thomas C. Grey, The New Formalism, (September 6, 1999). Stanford Law School, Public
Law and Legal Series, Working Paper No. 4., page 5, Available at SSRN:
http://ssrn.com/abstract=200732 (last visited May 23, 2008). See also Richard Pildes, Forms of
Formalism, 66 U. CHI. L. REV.608, 667 (1999) (arguing that according to the formalist
conception, right answers are “derived from the autonomous, logical working of the system”).
51
See Grey, id. See also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-
1960: THE CRISIS OF LEGAL ORTHODOXY (1992) 17-19, 198-199.
21

These claims with regard to the law were applied by Langdell mainly in the sphere of
private law. The claims that he made for law as a legal science were made with an
idealized private law in mind. By contrast, he considered constitutional law to be
“soft” law, not a field of serious, scientific legal thought.52 One of the famous
examples of Langdellian jurisprudence is the mailbox rule. Langdell resolved the
question of whether an insurance contract was valid from the time it was placed in the
mailbox or from the time it was received by the insurance company through a process
of logical deduction based on the legal concepts of a promise and of a contract. A
promise in order to be binding and become a contract had to be met with
consideration in terms of a return promise of the offeree. However a promise, by
nature, had to be communicated. Therefore unless the acceptance letter is received
and read there is no returned promise and no valid contract. Considerations such as
customary practice and practical difficulties, what Langdell termed “the balance of
convenience” were thought to be legally irrelevant.53
C.1.2. Balancing as anti-Langdellianism
Starting with the writings of Holmes, this set of beliefs regarding the nature of law
was attacked by the Progressive movement. The idea of balancing was an important
conceptual element of this attack. Instead of logically deducing results from the
abstract meanings of rights and principles, Holmes believed that the law should be
viewed as a means to a social end, and that the methodology for arriving at the best
legal rule was the balancing of the various social interests that were affected by it.
Thus, for example, the mailbox rule should have been decided based on a balancing of
the interests of the insured and the insurer, taking into consideration actual business
practices and market relations.54 In his Common Law, Holmes wrote as early as 1870
that when “two rights run against one another… a line has to be drawn,” and the
52
See Grey, id. See also HORWITZ, id.
53
See Grey, supra note 49, at 3-4.
54
Holmes wrote with regards to the consideration doctrine that framed Langdell’s discussion of
the mailbox rule: “The doctrine of consideration is merely historical. . . . Consideration is a mere
form. Is it a useful form? If so, why should it not be required in all contracts? . . . Why should
any merely historical distinction be allowed to affect the rights and obligations of business
men?". Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 465 (1897).
22

decision must be based on “distinction of degree,” rather than on “logical deduction”
from conceptions of absolute rights.55 And in The Path of Law Holmes wrote that
“Judges… have failed adequately to recognize their duty of weighing considerations
of social advantage.”56
Holmes did not view rights and legal principles as discrete entities, but as in conflict
with each other, and as having areas of convergence and overlap. Thus, Holmes wrote
that “[t]he boundary at which the conflicting interests balance cannot be determined
by any general formula in advance, but points in the line, or helping to establish it, are
fixed by decisions that this or that concrete case falls on the nearer or farther side.”57
Another proponent of balancing was Cardozo, who wrote that legal decisions depend
“largely upon the comparative importance or value of the social interest that will be
thereby promoted or impaired.” Roscoe Pound also wrote emphatically in favor of
“weighing social interests,” and argued that the law “is an attempt to satisfy, to
reconcile, to harmonize, to adjust… overlapping and often conflicting claims and
demands.”58
The Progressive movement was influenced by philosophical movements both inside

the United States and without. Domestically, one of the major influences was
pragmatism and the philosophy of William James and James Dewey, which provided
the intellectual background for both Progressivism and balancing. Pragmatism viewed
truth as a social construct, the only basis for the truth of a concept being its pragmatic
use in human affairs. Rather than looking for answers in metaphysics, pragmatism
required that actual interests be identified and balanced in order to determine the
truth.59 Abroad, Progressives were influenced by the German Freirecht movement,
which criticized formalism and conceptualism in German private law. One can draw a
direct line from the idea of interests balancing promoted by von Jhering and the
55
Oliver W. Holmes, Privilege, Malice, and Intent, in COLLECTED LEGAL PAPERS 122 (1920).
56
Holmes, The Path of Law, in COLLECTED LEGAL PAPERS, id., at 184.
57
Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908).
58
Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 4 (1943).
59
See generally ROBERT S. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY (1982).
23

German Freirecht movement60 as a response to the legal metaphysics of Savigny,
described sarcastically by von Jhering as the “heaven of legal concepts,”61 and the
jurisprudence of interests promoted by Pound.
Bearing in mind the history of proportionality in Germany, one must note that the
intellectual soil from which balancing in American law arose, even before it entered
constitutional law, was quite different from German proportionality. Balancing was
associated with anti-formalism and pragmatism, while proportionality was much more
modest intellectually, and aspired only to be a mechanism to be applied within the
general formalistic conception of law. As noted before, the German scholars that
influenced American balancing – von Jhering and the other Freirecht scholars -- were
in no way associated with the principle of proportionality in Germany.
C.2. Background for Progressive Balancing in Constitutional Law: Balancing

and Anti-Formalism in Constitutional Law
The Progressive anti-formalist attack that began as an attack on Langdellianism in

private law was soon extended to constitutional law in the form of an attack on
Lochnerism. The Progressives used the anti-formalistic arsenal to attack the
formalistic way in which the Court interpreted constitutional rights. Progressive
balancing in constitutional law occurred in two different contexts. The first was anti-
Lochnerism, and advocacy of the principle of balancing in Fourteenth Amendment
jurisprudence. The second was advocacy of balancing in First Amendment
jurisprudence during the McCarthy era. Both rounds of balancing however had the
60
See JOHN .M. KELLY, A SHORT HISTORY OF WESTERN LEGAL THEORY 330 (1992) (describing
the origins of the conception of law as the arena for balancing conflicting social interests, as
starting with August Comte, and Rudolf von Jhering); James E. Herget & Stephen Wallace, The
German Free Law Movement as The Source of American Legal Realism, 73 VA. L. REV. 799
(1989); cf. Carl J. FRIEDRICH, THE PHILOSOPHY OF LAW IN HISTORICAL PERSPECTIVE 156-7
(1963) arguing that the Progressive’s adoption of German balancing involved a change in the
original concept of balancing.
61
Rudolf von Jhering, In the Heaven of Legal Concepts, translated in MORRIS R. COHEN & FELIX
S. COHEN, READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 678 (1951).
24

same affect of advocating judicial restraint, and of suggesting that rights be treated as
social interests that had to be balanced against other social interests.
C.2.1. Lochnerism
The Lochner Court is the name commonly used to refer to the US Supreme Court
roughly between the years 1900-1937. The Lochner62 decision which gave its name to
the entire period exemplifies both the formalist methodology of the Court and its
ideological libertarian inclinations.
In Lochner, the Court struck down a New York state law that limited bakery
employees' working hours to 10 hours per day and 60 hours per week. The Court
ruled that the right to liberty in the Fourteenth Amendment included the right to
freedom of contract, and that this right was absolutely protected from legislative
incursions, except in the limited context of “police powers of the state”63.
The decision was formalistic in two senses. First, it sought (and found) the solution to
the legal issue in the meaning of one concept – liberty – through a process of logical
deduction from the proper meaning of that concept. Second, it arrived at its legal
conclusion without referring to the social realities of labor relations, in which workers
had no meaningful "liberty" to accept or reject working conditions that were in fact
imposed on them by their employers.
In addition, the decision also revealed the ideological background of the Lochner
Court and its philosophical reliance on natural rights. The right to liberty was
interpreted in a conceptual framework in which the state could intervene in the
exercise of individual liberty only to protect a limited set of crucial interests termed
“police powers of the state.”64 All in all, individual liberty was considered protected
as part of the inalienable natural rights of the person – the right to life, liberty and
property. This natural rights theory had an obvious libertarian effect when applied to
62
Lochner v. New York, 198 U.S. 45 (1905).
63
Id. at 53.
64
Id.
25

market intervention by the state.65 It was opposed to state intervention for purposes of
economic redistribution or social equality, and, based on its principles, legislative
attempts to regulate the economy, such as Roosevelt’s New Deal initiatives, were
struck down.
C.2.2. Balancing as anti-Lochnerism
Balancing was an integral part of the Progressive attack on Lochnerism and on

formalism in constitutional law. First, as in the case of Langdellianism, balancing was
the alternative to formalism. Instead of deducing logically the legal outcome from the
meaning of the right to liberty, balancing meant that the decision should be based on
the balancing of the conflicting interests. Thus, Holmes in his famous dissent in
Lochner wrote that “general propositions” cannot decide concrete cases, and that the
word “liberty” is perverted by the Court's interpretation of it, insofar as the Court
understood "liberty" as leading directly to the legal conclusion that it reached.66
Instead, Holmes suggested that the Court had in fact relied on its own balancing of
interests (in this case, a preference for laissez-faire economy over social equality)
while hiding behind the fig leaf of formalism.67
Second, balancing was the Progressive way of signaling that certain rights were in
fact social interests, and that the Court’s reliance on the rhetoric of rights resulted in
an unfair emphasis on particular interests (mainly those of the richer segments of
society) at the expense of other interests. This point was very clearly made by Pound.
In A Survey of Social Interests,68 Pound’s most comprehensive piece on balancing,
Pound responded to Justice McKenna’s attempt to protect the right of contractual
freedom from legislative encroachments. Justice McKenna claimed that there was a
“menace in the… judgment of all rights, subjecting them unreservedly to conceptions
of public policy.”69 Pound thought otherwise, criticizing the Court's exaggerated
concern for private rights at the expense of public rights:
65
HORWITZ supra note 51, at 10.
66
198 U.S at 75-76.
67
Id.
68
Pound, supra note 58.
69
Arizona cooper co. v. Hammer, 250 U.S. 400 (1919) (Justice McKenna dissenting).
26

It was only the ambiguity of the term “right”… that made it possible to think
of the decision in question in such a way… The “rights” of which Mr. Justice
McKenna spoke were… individual wants, individual claims, individual
interests, which it was felt ought to be secured through legal rights or through
some other legal machinery… Thus, the public policy of which Mr. Justice
McKenna spoke is seen to be something at least on no lower plane than the so-
called rights… There is a policy in the one case as much as in the other.70
The conception of rights as another form of interests stood in opposition to the idea of
natural rights, used by the Lochner Court. There was nothing natural in the preference
of private property over public interests. The two represented interests that were in
conflict with each other, and needed to be balanced against each other. The reliance
on natural rights was thus exposed as a manipulation in favor of one interest.
The balancing methodology was also integrated into a general conception of

constitutional interpretation of rights as standards rather than as categorical and
absolute restrictions on governmental action. It thus supported giving the legislature a
certain degree of latitude in the infringement of rights, and for a comparable measure
of judicial self-restraint. Once again, Holmes fired the first shot in this attack, arguing
that “[a]ll rights tend to declare themselves absolute to their logical extreme. Yet all in
fact are limited by the neighborhood of principles of policy which are other than those
on which the particular right is founded, and which become strong enough to hold
their own when a certain point is reached.”71 Similarly, Pound wrote that the
Fourteenth Amendment is only imposed as a standard on the legislator.
It sa[ys] to him that if he trenched upon these individual interests he must not
do so arbitrarily. His action must have some basis in reason. It is submitted that
that basis must be the one upon which common law has always sought to
proceed, the one implied in the very term “due process of law,” namely, a
weighing or balancing of the various interests which overlap or come in
conflict and a rational reconciling or adjustment.72
70
Pound, supra note 58, at 4 (emphasis added).
71
Hudson County, 209 U.S. 355.
72
Pound, supra note 58 (emphasis added).
27

Later-day Progressives such as Harlan Fiske Stone and Learned Hand promoted
balancing as part of their view that all constitutional provisions were in fact standards,
rather than exact rules which imposed concrete limits on government. Harlan Fiske
Stone wrote:
The great constitutional guarantees of personal liberty and of property… are

but statements of standards… The chief and ultimate standard which they
exact is reasonableness of official action and its innocence of arbitrary and
oppressive exactions… They do not prescribe formulas to which governmental
action must conform… [They do not subject] government to inexorable
commands imposed upon it in another age. [They should] enable government,
in “all the various crises of human affairs,” to continue to function and to
perform its appointed task within the bounds of reasonableness…73
Progressive balancing was therefore hostile to constitutional rights in two important

and related ways. First, it sought to equate rights with interests. Rights were nothing
more than particular social interests, and therefore should be balanced against other
interests. In particular, to elevate rights above interests as a separate and different
category was considered a rhetorical or manipulative move, used only in order to
further the ideological goals of the Court.
Second, Progressives believed that balancing should be left to the legislature.

Professor Horwitz makes this view clear: “[I]f law is merely a battleground over
which social interests clash, then the legislature is the appropriate institution for
weighing and measuring competing interests.” And he adds that “by the time The
Path of Law was written, the focus of Holmes’s Darwinism had shifted from courts to
legislatures.”74
C.2.3. Progressive Balancing During the McCarthy Era.
Balancing continued to be associated with an attack on formalistic and absolutist

conception of rights, and with judicial restraint, during the McCarthy era in the 1950s.
73
Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4, 23-24 (1936)
(emphasis added).
74
HORWITZ, supra note 51, at 142.
28

The Justices who applied balancing principles during this period should rightly be
regarded as part of the Progressive movement, and their actions should thus be
included in the review of the origins of balancing.
The liberal-conservative divide in McCarthy's period was different from that of the
Lochner period. Now it was the legislature and the executive that were conservative
and reactionary, rather than the Court. However, those Justices who considered
themselves the followers of the early Progressives remained methodologically faithful
to balancing, applying it in the same way that Holmes and Pound had done.75
Justice Frankfurter’s opinion in Dennis76 is the leading example of the use of

balancing during the McCarthy era. The case, which was decided at the height of the
McCarthy anti-communist campaign, involved an appeal on constitutional free speech
grounds by members of the American Communist Party of their conviction under the
Sedition Act. Justice Frankfurter, writing in concurrence, applied balancing to the
First Amendment right of free speech, much in the same way that the earlier
Progressives had applied it to the right to freedom of contract under the Fourteenth
Amendment. He argued that the right to free speech should not be read formalistically
and in absolute terms: “there are those who find in the Constitution a wholly
unfettered right of expression. Such literalness treats the words of the Constitution as
though they were found on a piece of outworn parchment.”77 Instead, he argued, the
right should be read as a standard, and as espousing one of several interests in society
which clash and should be balanced one against the other.
The demands of free speech in a democratic society as well as the interest in

national security are better served by candid and informed weighing of the
competing interests, within the confines of the judicial process, than by
75
For a general review of the use of balancing during the McCarthy era, and for objections on the
Court see MELVIN I. UROFSKY, DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE
AND V INSON, 1941-1953, (1997). Also see Frantz, supra note 10; Mendelson, supra note 10.
76
Dennis v. United States, 341 U.S. 494 (1951).
77
Id. at 524.
29

announcing dogmas too inflexible for the non-Euclidian problems to be
solved.”78
Similar to the Progressives before him, Frankfurter also argued that the weighing of
interests should be left to the legislature, and that the Court should apply judicial
restraint: “Primary responsibility for adjusting the interests which compete in the
situation before us, of necessity, belongs to the Congress.” 79
Dennis was followed by a line of cases in which balancing was used in this same
way.80 These cases exhibit very clearly all three of the characteristics of Progressive
balancing discussed above: its anti-formalism and anti-absolutism, its association with
judicial restraint, and, most importantly, its hostility to the preference of rights over
interests and to the idea that rights are immune from public interest considerations.
Not coincidentally, to this day Dennis symbolizes the dangers stemming from the use
of balancing: the danger of judicial capitulation to the legislative balance in times of
national security crisis. Nor is it surprising to note that the liberal Warren Court
dissociated itself completely from the idea of balancing, in part as a consequence of
the stigma attached to Dennis.81 Most of the major constitutional decisions of the
Warren Court avoided balancing rhetoric.82 Some Warren Court decisions even
rejected balancing explicitly.83
78
Id .at 524-5.
79
Id. at 525-26.
80
The major cases involved in this debate were American Communications Ass'n v. Douds, 339
U.S. 382 (1950); Barenblatt v. United States, 360 U.S. 109 (1959); Konigsberg v. State Bar, 366
U.S. 36 (1961); Communist Party of the United States v. Subversive Activities Control Bd., 367
U.S. 1 (1961).
81
See HORWITZ, supra note 51. at 68 (“As a result of this blatant misuse, the balancing test in civil
liberties litigation deservedly acquired a bad reputation among liberal justices, and Warren Court
opinions are filled with angry denunciation of its use.”); John H. Ely, Flag Desecration: A Case
Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L.
REV. 1482, 1490-91 (1975) (“[Balancing] was hardly the attitude of the Warren Court, at least in
its later years. During [that period] the Court was making clear its dissatisfaction with a general
balancing approach…”).
82
347 U.S. 483 (1954). See Aleinikoff, supra note 9, at 998 (arguing that the major constitutional
cases of the Warren Court were not balancing cases. Referring to Brown v. Board of Education,
30

C.3. Conclusion
The historical origins of balancing in American constitutional law were very

different from—even antithetical to—the historical origins of proportionality in
German law. First, unlike proportionality, balancing entered a system in which
constitutional guaranties were already present, and in which judicial activism to
protect rights was an established norm. Therefore, unlike proportionality which
was a way to guarantee that rights were not unnecessarily harmed, balancing was a
way to ensure that rights were not protected unnecessarily by balancing them
against public interests. Second, balancing entered as part of the anti-formalist
movement, which shunned categorical distinctions between rights and interests
and objected to according greater deference to rights than to interests. By contrast,
the focus of proportionality (as well as the Rechtsstaat) was to find particular ways
of restricting governmental action, which restrictions would be grounded in the
unique status of rights and the need for government to provide special justification
in order to infringe them.
Finally, both jurisprudentially and ideologically, the background of the two

concepts was very different. Proportionality was developed within the well-
organized and formalist jurisprudence of the PSAC, without any aspirations to the
creation of a sweeping theory. Balancing, on the other hand, was part of a
revolutionary anti-formalist conception of law, which changed the face of
American law, and whose purpose was to undermine the existing legal philosophy.
Ideologically, proportionality was based on natural rights liberalism and
libertarianism, while balancing sought to undermine natural rights, and oppose the
libertarian conception of the property and liberty rights.
347 U.S. 483 (1954), he writes: “Of course… there were competing interests at stake. But the
Court based its decision—as has society—not on the balance of those interests, but on the
intolerability of racial discrimination.”).
83
See, e.g., Chief Justice Warren in his opinion in United States v. Robel, 389 U.S 258, (1968): “it
has been suggested that this case should be decided by ‘balancing’ the governmental interests…
against the First Amendment rights... This we decline to do.” Id. at 268 n.20.
31

D. AFTERWORD: WILL BALANCING AND PROPORTIONALITY CONVERGE?
While balancing and proportionality are thought of as two sides of the same coin, an
historical examination of their origins suggests that they are unrelated, arising in
different contexts, addressing distinct problems and serving diametrically opposed
functions. Genealogically, they do not share a common ancestor, but are rather the
descendants of two distinct genealogical lines. The most telling fact in this regards is
perhaps the fact that the Freirechtschule, the German legal movement that was
influential in the introduction of the concept of balancing into American
jurisprudence, stood in opposition to German proportionality. Consequently, to the
extent that any transatlantic "genealogical" ties can be identified in this area, they are
between German Frierecht proponents of balancing (in terms of the movement's
radical criticism of private law) and proponents of American balancing, but not
between proportionality and balancing.
Nonetheless, this does not mean that the two concepts are not converging and may not
eventually serve similar functions. Indeed, there are signs that since World War II
such a convergence between balancing and proportionality has been gradually taking
place in Germany and the United States.
One of the effects of the adoption in post-War Germany of a new constitution was to
expand the principle of proportionality from an administrative law principle to a
constitutional law principle.84 The fact that rights now enjoyed constitutional
guarantees, as in the United States, meant that proportionality analysis could be used
to impose limits on rights, as opposed to exclusively promoting them, as in the past.
84
Interestingly, the new German Constitutional Court held that proportionality was a constitutional
principle, in spite of the fact that the German Basic Law of 1949 provided no textual basis for
such a conclusion. See Schwarze, supra note 42, at C2. The Constitutional Court derived the
principle of proportionality from another constitutional principle, that of the Rechtsstaat (see
above, at section B.1.) but it did not elaborate on the connection between the two, possibly, as
Dieter Grimm has suggested, because the Court could not have predicted the important role that
the proportionality test would subsequently play in German constitutional law, and once its
importance became clear, it had already become a well-established legal principle and there was
no occasion to explain its origins. See Grimm, supra note 12, at 386.
32

There have in fact been a number of cases in which the German Constitutional Court
applied proportionality to limit constitutional rights, as has been the case in the United
States.85
The German Constitutional Court has also shifted the focus of the proportionality
analysis from its first two sub-tests (suitability and necessity), which deal with the
logical and empirical links between means and ends, to the third sub-test
(proportionality in the strict sense).86 This shift signals a greater tendency of the
German Constitutional Court (as compared to PSAC) to apply balancing not in a
formalistic manner.87 In this respect, too, it seems that German proportionality is
converging with American balancing.
85
The German Constitutional Court has held, for instance, that despite the fact that the rights to
artistic speech and freedom of religion are drafted in absolute terms in the 1949 Basic Law, they
can be limited when the government wishes to promote a different constitutional value. See
MICHAEL SACHS, GRUNDGESETZ: KOMMENTAR 94, 96 (1996); HAURST DREIER, GRUNDGESETZ –
KOMMENTAR 83 (1996). See also the Court's decision in the Religious Oath case, 33 BverfGE
23 (1972), (parts of the decision are translated to English in DONALD KOMMERS, THE
CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 453 (2nd ed., 1997)).
86
This is the main argument advanced in Grimm, supra note 12, at 393-395; see also Stone Sweet,
supra note 6, at 97-98 (noting that European constitutional courts, in particular the German
Court, routinely engage in balancing).
87
This has been linked to the fundamental change in German constitutional law from a procedural
to a substantive and highly activist model of democracy. See Rubenfeld, supra note 13; Stone,
supra note 6. Hence, contrary to the almost obsessive engagement of American constitutional
law in the anti-majoritarian problem of judicial review, few would argue in Germany that the
Constitutional Court's engagement in balancing between competing values lacks legitimacy. For
an ideological (libertarian) critique of the jurisprudence of the German Constitutional Court, see
Ernst W. Böckenförde, Grundrechte als Grundsatznormen in DES., STAAT, VERFASSUNG,
DEMOKRATIE 167 (1991). For a jurisprudential critique see Erhard. Denninger, Freiheit –
Wertordnung – Pflichtordung: Zur Entwicklung der Grundrechtjudicatur des
Bundesverfassungsgericht, JURISTENZEITUNG 30 545 (1975); HELMUT GOERLICH, WERTORDUNG
UND GRUNDGESETZ 140 (1973); KLAUS STERN, DAS STAATSRECHT DER BUNDESREPUBLIK
DEUTCHLAND (1988), BAND III/1, 913; Wolfgang Zeidler, Grundrechte und
Grundenscheidungen der Verfassung im Widerstreit, 53 DEUTSCHEN JURISTENTAGES 133(1980)
Carl Schmitt, Die Tyrannei der Werte, in SÄKULARISATION AND UTOPIE: ERNST FORSTHOFF
ZUM 65. GEBURTSTAG 37, 45 (Deoring & Greve eds., 1967).
33

Conversely, in the United States balancing is becoming associated not only with the
dilution of rights but also with the protection of rights, as proportionality is. Liberal
and progressive justices have discovered the potential of balancing as a tool for the
protection of rights. This has occurred mainly in cases that promote progressive
liberalism and notions of substantive justice in areas such as affirmative action, hate
speech, commercial speech and campaign finance.88 In addition, balancing is no
longer automatically identified with judicial restraint. Whereas in the Progressive era
those who supported balancing associated balancing with judicial restraint (any
balancing of competing values that needed to be done, according to this view, should
be the prerogative of the legislative branch), today this association has all but
disappeared, and when balancing is invoked as a judicial tool, usually associated with
judicial activism. In other words, it is a step in the direction of convergence with
proportionality which has always been associated with judicial activism.
Despite these steps toward convergence from both sides, we are still very far from a
model in which balancing and proportionality function in the same way. Balancing in
the United States may have gained some acceptance as a method that can protect
rights, but it is still a controversial and suspect concept, retaining some of its anti-
formalist image, and it has not acquired the status of a central, formal doctrine of
American constitutional law. Proportionality, for its part, has a very different place
within European, and particularly German, constitutional law than balancing has in
the United States. It does not raise as much suspicion on the part of rights activists as
balancing does, and, more importantly, it has gained the status of a central and non-
controversial doctrine. Proportionality can be said to be at the heart of European
constitutional jurisprudence, whereas balancing in many respects is still at the margins
of American constitutional jurisprudence. Historical reasons are undoubtedly in part
responsible for this state of affairs.
88
In recent years conservative Justice in the Court relied on the categorical wording of the First
Amendment in order to strike down legislative progressive policies as unconstitutional. See
James M. Balkin, Some Realism about Pluralism, 1990 DUKE L.J. 375, 384; Fredrick Schauer,
The Political Incidence of the Free Speech Principle, 64 U. COLO. L. REV.. 935, 942 (1993).
34

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AMERICAN BALANCING AND GERMAN PROPORTIONALITY: THE HISTORICAL ORIGINS

IDDO PORAT AND MOSHE COHEN-ELIYA

American and European constitutional systems have two similar

We examine the ways in which proportionality developed in

A. ANALYTICAL DIFFERENCES BETWEEN BALANCING AND PROPORTIONALITY 6

B. THE ORIGINS OF PROPORTIONALITY IN GERMAN ADMINISTRATIVE LAW 13

C. THE ORIGIN OF BALANCING IN AMERICAN CONSTITUTIONAL JURISPRUDENCE 18

D. AFTERWORD: WILL BALANCING AND PROPORTIONALITY CONVERGE? 32

Constitutional law is being globalized. It is becoming a shared enterprise that

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The difference between European and American constitutional law is therefore

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The historical account, we believe, may therefore suggest that we have an

A. ANALYTICAL DIFFERENCES BETWEEN BALANCING AND PROPORTIONALITY

Electronic copy available at: https://ssrn.com/abstract=1272763

For example, in the Israeli case of Horev v. Minister of Transportation,15 which

Like proportionality, balancing is triggered when a constitutional right or another

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These scholars may be overemphasizing the rule-like nature of proportionality. More

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Second, some advocates of proportionality argue that proportionality is more

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Finally, advocates of proportionality often view balancing as being less protective of

This argument, however, is not based on an analytical distinction between balancing

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The principle of proportionality first arose in Germany. It was an important

B.1. Proportionality and Rechtsstaat

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B.2. Judicial Review and the Development of the Principle of Proportionality

The ideas of Rechtsstaat and proportionality required the establishment of an

Because the Prussian Parliament was a reactionary body and subservient to

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In a separate case, it ruled that restrictions on the rights of Social Democrats to

B.3. Proportionality, Natural Law and Formalism

In the absence of explicit protection of constitutional rights, many liberals resorted to

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In general, Prussian administrative judges refrained from presenting themselves as

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C. THE ORIGIN OF BALANCING IN AMERICAN CONSTITUTIONAL JURISPRUDENCE

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C.1.2. Balancing as anti-Langdellianism

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The Progressive movement was influenced by philosophical movements both inside

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C.2. Background for Progressive Balancing in Constitutional Law: Balancing

The Progressive anti-formalist attack that began as an attack on Langdellianism in

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C.2.2. Balancing as anti-Lochnerism

Balancing was an integral part of the Progressive attack on Lochnerism and on

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The balancing methodology was also integrated into a general conception of

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The great constitutional guarantees of personal liberty and of property… are

Progressive balancing was therefore hostile to constitutional rights in two important

Second, Progressives believed that balancing should be left to the legislature.